Black Watch: Today’s Top Stories

A week ago last Wednesday, when Conrad Black walked out the back of Room 1241 condemned to stay in Chicago (possibly ferrying as far afield as Palm Beach) until his sentencing at the end of November, the Globe’s Paul Waldie said, to no one in particular, “I guess now he’ll find out who his real friends are.” Waldie was referring specifically to Black’s need for more cash—cash he likely couldn’t raise himself to satisfy the court’s concern that he hadn’t posted sufficient bond. But there was a broader point as well. Rather than enjoying the vindication he so ardently sought, Black has suffered exactly the opposite. He has been, in every sense, vilified.

The government and people of Canada—a nation he yearns to rejoin—have turned their back to him: a conservative prime minister has voiced a regal indifference to his plight, and polling suggests 70 per cent of Canadians consider him fully deserving of the dozen or so years in prison that will likely be his lot starting sometime early next year. With this in mind, I was interested to read a piece in Friday morning’s Orangeville Citizen, Orangeville being a small bedroom burg north of Toronto. In the unsigned editorial, the author writes:

“We suspect that there would have been a similar outcome had the trial taken place in Toronto, with convictions on at least a couple of fraud counts in addition to the attempt to obstruct justice. However, the Toronto trial would have had an entirely different sequel when it came to punishment. As matters stand, Lord Black now faces a maximum sentence of 35 years in prison and $1 million in fines, while Jack Boultbee, Peter Atkinson and Mark Kipnis could spend up to 15 years in prison with fines of $750,000. But in Canada the maximum penalty for both fraud and obstructing justice is 10 years, and that penalty is supposed to be reserved for the worst crime and worst offender. In the case of multiple fraud convictions, Canada’s courts also invoke sentencing principles that avoid meting out consecutive sentences for related offences. For someone in Lord Black’s position, as a first offender, he would normally face a sentence of well under 10 years, with eligibility for full parole after one-sixth of the time had been served. But in the U.S., even a 10-year sentence involves worse consequences for the whitecollar criminal than we reserve for a killer convicted of manslaughter and given the maximum penalty of ‘life.’ Here, a life sentence carries with it eligibility for seek parole after seven years. But in the U.S. federal justice system, a 10-year sentence includes a requirement that even with good behaviour, an offender must spent 85 per cent of the term (8 1/2 years) behind bars. In the circumstances, it will be interesting to witness the arguments advanced when the sentencing hearing gets under way on November 30. In both Canada and the U.S., the major objective in any sentencing is protection of the public, and in any given case the court will examine the need for ‘specific’ and ‘general’ deterrence. (Is the offender likely to re-offend, or is there a need for the court to send out a message that will deter others?) Lord Black having had no prior convictions, the need for specific deterrencewould be minimal. As for general deterrence, the novelty of the prosecution could be seen as indicating there’s relatively little likelihood that other corporate executives will engage in similar activity, and there’s precious little evidence of widespread payments being made to vendors who promise not to compete with the purchasers.”

While I have maintained a healthy skepticism of the often self-serving and credulity-stretching arguments emanating from Black and his posse throughout the trial, to the degree that agreeing with this editorial puts me in that same camp, so be it. Punishment for white-collar crime in America serves something like the same function as the virgin sacrifice in primitive pagan cultures, The Market having replaced whatever Godhead the ancients chose to venerate. Black deserves sanction and would receive it in most any constituency he chose to practice his brand of chicanery. But sanction and biblical retribution aren’t the same thing, and the sooner we as Canadians realize that, the more balanced will be our view of Lord Black in both the short and long term.